Walter v. Alt

• Decision Date: 12 June 1941
• Docket Number: 37417
• Parties: Cora M. Walter, Emma Williams and Anna A. Brand, Appellants, v. Katherine Alt, Josephine M. Alt, Lydia A. Ruetner, Katherine Alt and Josephine M. Alt, Trustees under the Will of John Alt, and Katherine Alt and Josephine M. Alt, Executrices under the Will of John Alt
• Court: Missouri Supreme Court

152 S.W.2d 135

348 Mo. 53

Cora M. Walter, Emma Williams and Anna A. Brand, Appellants, v. Katherine Alt, Josephine M. Alt, Lydia A. Ruetner, Katherine Alt and Josephine M. Alt, Trustees under the Will of John Alt, and Katherine Alt and Josephine M. Alt, Executrices under the Will of John Alt

No. 37417

Supreme Court of Missouri

June 12, 1941

Appeal from Circuit Court of St. Louis County; Hon. John A Witthaus, Judge.

Affirmed.

Neuhoff & Millar for appellants.

(1) A will contest is an "action at law," and the weight of the evidence and credibility of the witnesses are questions for the jury. Garland v. Smith, 125 Mo 39, 28 S.W. 191; Pulitzer v. Chapman, 337 Mo. 298 85 S.W.2d 400; Callaway v. Blankenbaker, 141 S.W.2d 810; Townsend v. Boatmen's Natl. Bank, 340 Mo. 550, 104 S.W.2d 657. (a) On appeal from a will contest, where the correctness of the trial court's action in directing a verdict upholding the will is under review, it is the function of the appellate court merely to determine whether the case should have been submitted to the jury. Cases cited under (1) above. (2) This issue involves a question of law as distinguished from a question of discretion in the trial court. Grange v. Chicago & E. I. Ry. Co., 334 Mo. 1040, 69 S.W.2d 955. (3) In determining whether a submissible case was made where the issue is whether a trial court should direct a verdict upholding the will, (a) plaintiffs' evidence must be accepted as true, even though contrary evidence may have been adduced by defendants; (b) the evidence of defendants must be disregarded except in so far as it supplements and aids plaintiffs' case, and plaintiffs are entitled to the benefit of such of the evidence of defendants as does aid and supplement plaintiffs' case; and (c) all of the evidence must be viewed in the light most favorable to plaintiffs, giving them the benefit of the most favorable inferences that can reasonably be drawn therefrom. Hamner v. Edmonds, 327 Mo. 281, 36 S.W.2d 929; Fowler v. Fowler, 318 Mo. 1078, 2 S.W.2d 707; Schoenhoff v. Haering, 327 Mo. 837, 38 S.W.2d 1011; Beckmann v. Beckmann, 331 Mo. 133, 52 S.W.2d 818. (4) To have testamentary capacity, the testator must have the ability to know, independently of assistance from any other person, (1) the general extent of his property and its nature; (2) to appreciate the proper objects of his bounty; and (3) to understand the nature of the act which he is doing. This can only be determined by consideration of all of the pertinent facts. Schoenhoff v. Haering, 327 Mo. 837, 38 S.W.2d 1011; Byrne v. Fulkerson, 254 Mo. 97, 162 S.W. 171; Ray v. Walker, 293 Mo. 447, 240 S.W. 187; Crum v. Crum, 231 Mo. 626, 132 S.W. 1070; Rock v. Keller, 312 Mo. 458, 278 S.W. 759; Hall v. Mercantile Trust Co., 332 Mo. 802, 59 S.W.2d 664; Holton v. Cochran, 208 Mo. 314, 106 S.W. 1035; Kleinlein v. Krauss, 209 S.W. 933; Naylor v. McReur, 348 Mo. 423, 154 S.W. 772; Heinbach v. Heinbach, 274 Mo. 301, 170 S.W. 1143; Minturn v. Conception Abbey, 27 Mo.App. 1179, 61 S.W.2d 352; Evans v. Partlow, 322 Mo. 11, 16 S.W.2d 212; Meyers v. Drake, 324 Mo. 612, 24 S.W.2d 116; 1 Page on Wills (2 Ed.), p. 275; Bensberg v. Washington University, 251 Mo. 641, 158 S.W. 330; Berkemeier v. Reller, 317 Mo. 614, 296 S.W. 739 (Div. 1, 1927), 317 Mo. 614, 37 S.W.2d 430 (Div. 2, 1931). (5) The undue influence which will vitiate a will is influence exercised by another person upon the testator, so that the will of the testator does not speak his real mind, but speaks that of the person dominating him. This can only be determined by consideration of all of the pertinent facts. Sehr v. Lindemann, 153 Mo. 276, 54 S.W. 537; Beckmann v. Beckmann, 331 Mo. 133, 52 S.W.2d 818; Teckinbrock v. McLaughlin, 209 Mo. 533, 108 S.W. 46; Winn v. Grier, 217 Mo. 420, 117 S.W. 48; Mowry v. Norman, 223 Mo. 463, 122 S.W. 724; Gibony v. Foster, 230 Mo. 106, 130 S.W. 314. (a) Where the undisputed evidence shows an opportunity for undue influence existed, undue influence need not necessarily be proved by direct evidence, but it may be shown by or inferred from facts and circumstances in evidence. This is especially so where it was uncontradicted that a fiduciary relationship existed between the testator and the influencing party. Fowler v. Fowler, 318 Mo. 1078, 2 S.W.2d 707; Loehr v. Starke, 332 Mo. 131, 56 S.W.2d 772; Pulitzer v. Chapman, 337 Mo. 298, 85 S.W.2d 400. (b) In order to determine whether undue influence was used to procure the execution of a will, the mental and physical condition of the testator is to be taken into consideration. Young v. Riddenbaugh, 67 Mo. 574; Turner v. Butler, 253 Mo. 202, 161 S.W. 745. (c) Where continuous domination and control over the mind of the testator was exercised by the party accused of exerting undue influence, it will not be presumed that a will in favor of the dominating party was any less the product of the dominating party than are all the other activities of the testator. Rayl v. Golfinopulos, 233 S.W. 1069; King v. Mo. Pac. Ry. Co., 263 S.W. 828. (d) A conspiracy to assert undue influence need not be proved by an express agreement or by direct means, but may be proven by circumstantial evidence. Once there is evidence tending to show a conspiracy, the declarations and actions of one party to it are admissible against the other. Ross v. Mineral Land Co., 162 Mo. 317, 62 S.W. 984; Dietrich v. Cape Brewery & Ice Co., 315 Mo. 507, 286 S.W. 38; McCutchan v. Kansas City Life Ins. Co., 122 S.W.2d 59; Mosby v. Commission Co., 91 Mo.App. 500; In re Largue's Estate, 198 Mo.App. 261, 200 S.W. 83. (6) "Substantial evidence" is evidence sufficient, in view of all the circumstances of the case, to warrant the jury, as triers of the facts, in finding from it the fact to establish which the evidence was introduced. State v. Gregory, 339 Mo. 133, 96 S.W.2d 47; Holstein v. Benedict, 22 Hawai'i 441, Ann. Cas. 1918B, 941; Mitchell v. Mitchell, 328 Mo. 793, 41 S.W.2d 792; Erickson v. Lundgren, 37 S.W.2d 629; Heflin v. Fullington, 37 S.W.2d 931; Fowler v. Fowler, 318 Mo. 1078, 2 S.W.2d 707; Fields v. Luck, 335 Mo. 765, 74 S.W.2d 35; Ray v. Walker, 293 Mo. 447, 240 S.W. 187. (7) Where, after giving the plaintiffs the benefit of the rule set out in point (3) above, it appears that there was substantial evidence of (a) undue influence or (b) lack of testamentary capacity, or both, then it is error for the trial court to refuse to submit a will contest case to the jury, and defendants' request for a directed verdict upholding the will should be refused. Lumley v. Gye, 2 E. B. 216, 17 Jur. 827, 22 L. J. Q. B. 463, 75 Ecl. 216; 16 Cyc. 850; Ray v. Walker, 293 Mo. 447, 240 S.W. 187; 22 C. J., Title Evidence, sec. 24; Schneider v. Maney, 242 Mo. 36, 145 S.W. 823; 16 Cyc. 936; Swinhart v. Railway, 207 Mo. 423, 105 S.W. 1043; Fulton v. Met. St. Ry. Co., 125 Mo.App. 239, 102 S.W. 47; Connecticut Mut. Life Ins. Co. v. Lathrop, 111 U.S. 612, 4 S.Ct. 538, 28 L.Ed. 536; State v. Buechler, 103 Mo. 207, 15 S.W. 332; Renfrew v. Goodfellow, 141 S.W. 1153; Roach v. Kansas City Rys. Co., 209 S.W. 969; Hartmann v. Fleming, 264 S.W. 873; Gardner v. Met. St. Ry. Co., 223 Mo. 389, 122 S.W. 1068; Rayl v. Golfinopulos, 233 S.W. 1069.

E. McDonald Stevens and Walter Wehrle for respondents.

(1) There was a total failure of proof of lack of testamentary capacity on the part of the testator and, therefore, the court did not err in instructing the jury, at the close of all the evidence in the case, that under the law and the evidence the instrument dated July 17, 1937, and introduced in evidence as the last will and testament of John Alt deceased, was in fact the last will and testament of John Alt, deceased. Berkemeier v. Reller, 296 S.W. 739; Id., 37 S.W.2d 430; Sayre v. Trustees of Princeton University, 192 Mo. 95; Hall v. Mercantile Trust Co., 59 S.W.2d 664; Riley v. Sherwood, 144 Mo. 354; Winn v. Grier, 217 Mo. 420; Archambault v. Blanchard, 198 Mo. 384; Smarr v. Smarr, 6 S.W.2d 86; Loehr v. Starke, 56 S.W.2d 772; Nook v. Zuck, 289 Mo. 24; Webster v. Leiman, 44 S.W.2d 40; Schrenhoff v. Haering, 38 S.W.2d 1011; Williams v. Lack, 40 S.W.2d 670. (2) No fraud or deceit in the actual execution of the will was charged in the petition. No demurrer was filed by the contestants to the prima facie proof made by the subscribing witnesses to the will, and the will was received in evidence. Since there was a total failure of proof by any substantial evidence of testamentary incapacity or undue influence as demonstrated by the authorities under Points (1) and (2) the court did not err in giving the peremptory instruction in the nature of a demurrer and directed a verdict in favor of the will. Proponents were clearly entitled under all the foregoing authorities, to have the jury directed by peremptory instruction to uphold the will, and the court properly instructed the jury to find in favor of the will. (3) If by any sort of deduction it be considered that the evidence sufficiently showed a fiduciary relation between John Alt or either Josephine or Katherine Alt, such fact alone would not give rise to a presumption or inference that the execution of the will was procured through the exercise of undue influence. Loehr v. Starke, 332 Mo. 131, 56 S.W.2d 772; Pulitzer v. Chapman, 337 Mo. 298, 85 S.W.2d 400. (4) In addition to showing the fiduciary relation and the gift by the will to the fiduciary beneficiary, there must be further facts and circumstances from which it can be fairly and reasonably inferred and found that the fiduciary beneficiary actively exercised an undue influence upon the testator in the making of the will. Rex v. Masonic Home, 108 S.W.2d 72; Larkin v. Larkin, 119 S.W.2d 351; Loehr v. Starke, 56 S.W.2d 772. (5) The trial court did not err in any of the particulars set out in Appell...